What are the advantages and disadvantages of appellate review of trial court rulings on issues of foreign law? What exactly does judicial review of unsettled questions of foreign law accomplish? What is its price? These questions are of considerable theoretical interest and immense practical importance. Their resolution calls for inquiries into the allocation of judicial authority and in its production of outcomes in the real world. The discussion proceeds first by briefly describing in Part II some of the causes and effects of the steadily increasing caseloads in appellate courts. After demonstrating that these caseloads may soon become unmanageable, Part II examines the two essential functions of appellate review and the justification for the conventional standards of review applied by appellate courts. Part III turns to the more complex matter of appellate review of issues of foreign law. It finds that neither of the functions served by appellate courts can provide a sound foundation for the de novo standard of review normally applied when issues of law are involved and urges a rethinking of the standard in light of the modern developments discussed above. Part IV accordingly addresses the normative question of whether de novo review should be abandoned when issues of foreign law are reviewed. This portion of the Article devotes attention to the private and institutional costs of de novo review and seeks to identify the potential harm, if any, to litigants that would result if the standard were changed. The discussion concludes that a deferential standard of review would offer litigants a fair means of dispute resolution and potentially mitigate the crisis of volume that has afflicted the appellate system. Finally, Part V discusses and critiques two alternative procedures for dealing with foreign law issues. The analysis shows that a deferential standard of review is a more theoretically satisfying way to protect the interests of litigants and to cope with rising dockets.
David Frisch, Contractual Choice of Law and the Prudential Foundations of Appellate Review, 56 Vand. L. Rev. 57 (2003).